12.2019 (by the applicant) hendaklah diakaskan dan digantikan dengan Kebenaran Merancang dan sahlaku sehingga 31.12.2023; b) Pihak responden (the applicant) bolehlah meletakkan syarat-syarat lazim digunapakai seperti syarat keselamatan, syarat-syarat pengangkutan murid-murid, syarat kebersihan dan syarat-syarat am yang dipersetujui di antara pihak perayu (second respondent) dan pihak responden untuk mengawal selia aktiviti Tadika Kreatif Inovasi ini; seperti Lampiran A; c) Pihak perayu (second respondent) perlu mendapatkan lesen menjalankan aktiviti ini dan perlu diperbaharui pada Januari setiap tahun sehingga tahun 2023.” [12] Dissatisfied with the decision of the first respondent, the applicant filed this application for judicial review to quash the decision of the first respondent. Principles relating to Judicial Review [13] Prior to considering and analyzing this application, it would be prudent for this court to be reflect on the legal principles relating to judicial review. Order 53 Rules of Court 2012 provides for the procedures for an application for judicial review. [14] It is trite that the decision of a public authority may be reviewed by this court on the grounds of illegality, irrationality, procedural impropriety or disproportionality. This review is not confined to the decision-making process but also to the merits of the decision. [15] In the Federal Court case, Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537, the liberal approach on judicial review in R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 has been re-emphasised at pp. 547 to 548 (CLJ); pp. 571 to 572 (MLJ) as follows: “[45] In the same appeal, Edgar Joseph Jr FCJ (Eusoff Chin in agreement) said that an award could be reviewed for substance as well as for process: It is often said that judicial review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v. Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open a challenge on grounds of ‘illegality’ and ‘irrationality’ and, in practice, this permits the courts to scrutinise such decisions not only for process, but also for substance. In this context, it is useful to note how Lord Diplock (at pp. 410- 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By ‘illegality’ as a ground for Judicial Review, I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By ‘irrationality’, I mean what can by now be succinctly referredto as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts’ exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v. Bairstow [1956] AC 14, or irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned ‘proportionality’ as a possible fourth ground of review which called for development.” [16] Further, the meaning of error of law has also been explained in the case of Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317 in the following words: “Is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” Analysis and Findings [17] There is only one issue before this court. The issue before this court is whether the first respondent is bound and should apply the stipulations of Guidelines GP027 dated April 2012 and GP027 dated 10.7.2017. [18] The applicant argued that the first respondent ought to be bound and should apply the Rancangan Tempatan Majlis Perbandaran Subang Jaya (Pengubalan 2020) which was gazetted on 23.6.2016. [19] In accordance with the said “Rancangan Tempatan Majlis Perbandaran Subang Jaya (Pengubahan 2020)”, inter alia, it was provided that: “1. Setiap kelas guna tanah yang dibenarkan perlu mematuhi Manual Garis Panduan & Piawaian Perancangan Negeri Selangor, Dasar Kerajaan Negeri & Persekutuan, garis panduan khusus dan keperluan daripada jabatan teknikal.” (see exhibit “RR-22”, page 46, bottom, Nota 1)” [20] It was submitted by the applicant that the Guidelines 0027 dated April 2012 and GP027 dated 10.7.2017 are applicable and ought to be applied by both the applicant and the first respondent. [21] To support this contention, the applicant argued that guidelines have a force a law. [22] In Majlis Angkatan Tentera Malaysia v. Mohd Nurul Ami Mohd Basri [2019] 2 CLJ 772 (Court of Appeal) [Tab A], His Lordship Abdul Rahmad Sebli, JCA (now FCJ), at page 785, decided that: “[33] … for any guideline to have any force of law, it must be made pursuant to a power given by law. …” [Emphasis added] [23] In Noor Shariful Rizal Noor Zawawi v. PP [2017] 4 CLJ 434 (Court of Appeal) [Tab B], His Lordship Zamani A Rahim, JCA, at page 447, decided that: “[42] Thus, s. 31 of the Drug Dependents (Treatment and Rehabilitation) Act 1983 must be read conjointly with ss. 38A and 38B of the Dangerous Drugs Act 1952. Therefore, the KKM Guidelines Bilangan 6/2002 which is formulated in line with both of the aforesaid Acts and therefore it has the force of law.” [Emphasis added] [24] The applicant submitted that the Guideline GP027 were enacted and published by Jabatan Perancangan Bandar dan Desa Semenanjung Malaysia (PLANMalaysia) under the Kementerian Perumahan dan Kerajaan Tempatan. The governing statutory Acts, include the Town and Country Planning Act 1976 and the Local Government Act 1976, Paragraph 4 of GP027 states as follows: “4.0 Peruntukan Perundangan dan Peraturan Perancangan dan penubuhan TADIKA dan TASKA adalah tertakluk kepada peruntukan perundangan dan peraturan utama seperti berikut: i. Kanun Tanah Negara 1965 [Akta 56]; ii. Akta Perancang Bandar dan Desa 1976 [Akta 172]; iii. Akta Kerajaan Tempatan 1976 [Akta 171]; iv. Akta Pelajaran 1961 [Akta 43]; v. Akta Pendidikan 1996 [Akta 550]; vi. Akta Taman Asuhan Kanak-Kanak 1984 [Akta 308]; vii. Undang-undang Kecil Bangunan Seragam 1984 [UKBS, 1984]; viii. Peraturan-Peraturan Pendidikan 1997 & 1998; ix. Peraturan-peraturan Taman Asuhan Kanak-Kanak (Di Institusi) 1985; x. Arahan Ketua Pengarah (KP) Jabatan Bomba dan Penyelamat Malaysia; xi. Rujukan Jabatan Bomba dan Penyelamat Malaysia; xii. Kurikulum Asuhan dan Didikan Awal Kanak-Kanak Kebangsaan yang dilaksanakan oleh Kementerian Pendidikan Malaysia (KPM); dan xiii. Peraturan-Peraturan yang dikeluarkan dari semasa ke semasa.” [25] It was further submitted that the GP027 dated 10.7.2017 was approved at the Cabinet Meeting on 21.6.2017 and the Mesyuarat Majlis Negara Bagi Kerajaan Tempatan ke 71 on 10.7.2017. Learned counsel for the applicant argued that GP027 which was approved in Cabinet Meeting has the force of law, and hence ought to be complied with by both respondents. [26] Further to this, the applicant submitted that the decision of the first respondent would cause non-conformity which, in turn, would result in chaos in the administration. [27] On behalf of the first respondent, the senior federal counsel argued that the first respondent was well within its jurisdiction when it heard the appeal against the decision of the local authority. Reference was made to section 23 of Town and Country Planning Act 1976 which provides: “(1) An appeal against the decision of the local planning authority made under subsection 22(3) may be made to the Appeal Board within one month from the date of the communication of such decision to him, by—